Citation Nr: 1022607
Decision Date: 06/18/10 Archive Date: 06/24/10
DOCKET NO. 09-03 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to an initial rating in excess of 10 percent
for posttraumatic stress disorder for the period prior to
October 14, 2008, and in excess of 30 percent thereafter.
3. Entitlement to an initial compensable rating for right
hip strain for the period prior to October 14, 2008, and in
excess of 10 percent thereafter.
4. Entitlement to an initial compensable rating for
chondromalacia, left knee for the period prior to October 14,
2008, and in excess of 10 percent thereafter.
5. Entitlement to an initial compensable rating for
chondromalacia, right knee for the period prior to October
14, 2008, and in excess of 10 percent thereafter.
6. Entitlement to an initial rating in excess of 10 percent
for urticaria.
7. Entitlement to an initial compensable rating for residual
scar, shrapnel wound to the right shoulder.
8. Entitlement to an initial compensable rating for residual
scar, status post fracture of the left first metatarsal bone.
9. Entitlement to an initial compensable rating for residual
scar, status post hernia repair.
10. Entitlement to an initial compensable rating for plantar
wart of the right foot.
REPRESENTATION
Appellant represented by: John S. Berry, Attorney
ATTORNEY FOR THE BOARD
L. A. Rein, Counsel
INTRODUCTION
The Veteran had active military service from June 1980 to
February 2006.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem,
North Carolina.
Because the Veteran has disagreed with the initial ratings
assigned following the grants of service connection for the
matters on appeal, the Board has characterized these issues
in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999)
(distinguishing initial rating claims from claims for
increased ratings for already service- connected disability).
Although the RO has granted higher staged ratings during the
pendency of this appeal for PTSD, right hip strain, and
chondromalacia left and right knee, inasmuch as higher
ratings are available during each period, and a Veteran is
presumed to seek the maximum available benefit for a
disability, the claims for initial higher ratings remain
viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38
(1993).
The issues of higher initial ratings for right hip strain,
chondromalacia of the left and the right knee, and residual
scar, status post fracture of the left first metatarsal bone
will be considered within the Remand section of this document
below and is REMANDED to the RO. VA will notify the Veteran
when further action, on his part, is required.
FINDINGS OF FACT
1. All notification and development actions needed to fairly
adjudicate each claim decided herein has been accomplished.
2. The competent evidence does not demonstrate that the
Veteran currently has bilateral hearing loss to an extent
recognized as a disability for VA purposes.
3. Since the March 1, 2006 effective date of the grant of
service connection the Veteran's PTSD was manifested,
primarily, by chronic sleep impairment, nightmares, night
sweats, flashbacks, hypervigilance, avoidance behavior,
easily startled, feeling detached or estranged from friends
and family, and anxiety; collectively, these symptoms are
indicative of occupation and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks. Symptoms
of occupational and social impairment with reduced
reliability and productivity have not been demonstrated.
4. Since the March 1, 2006 effective date of the grant of
service connection, the service-connected urticaria has been
manifested, at most, by recurrent episodes occurring at least
four times during the past 12-month period, and responding to
treatment with antihistamines or sympathomimetics.
Recurrent debilitating episodes occurring at least four times
during the past 12 month period, and; requiring intermittent
systemic immunosuppressive therapy for control have not been
demonstrated.
5. Since the March 1, 2006 effective date of the grant of
service connection, the service-connected residual scar,
shrapnel wound to the right shoulder does not involve an area
of 144 square inches or greater and does not result in
scarring that is unstable, or painful; nor does it result in
any limitation of function or motion.
6. Since the March 1, 2006 effective date of the grant of
service connection, the service-connected residual scar,
status post hernia repair does not involve an area of 144
square inches or greater and does not result in scarring that
is unstable, or painful; nor does it result in any limitation
of function or motion.
7. Since the March 1, 2006 effective date of the grant of
service connection, the Veteran's service-connected plantar
wart of the right foot is manifested by pain, but is not
manifested by a wart that is deep, superficial and exceeds
144 square inches, that is unstable, or that causes a
compensable degree of limitation of motion.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing
loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.385 (2009).
2. Resolving all reasonable doubt in the Veteran's favor,
the criteria for an initial 30 percent, but no higher, rating
for PTSD, from the March 1, 2006 effective date of service
connection, have been met through the appellant period. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130,
Diagnostic Code 9411 (2009).
3. The criteria for an initial rating in excess of 10
percent for urticaria have not been met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic
Codes 7800-7805, 7819 (2009).
4. The criteria for an initial compensable rating for
residual scar, shrapnel wound to the right shoulder have not
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3,
4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2009)
5. The criteria for an initial compensable rating for
residual scar, status post hernia repair have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10,
4.118, Diagnostic Codes 7801-7805 (2009)
6. Resolving all reasonable doubt in the Veteran's favor,
the criteria for an initial 10 percent, but no higher rating,
for plantar wart of the right foot, have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Codes 7801-
7805, 7819 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and
5126 (West 2002 & Supp. 2009) includes enhanced duties to
notify and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).
Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim, as well as the evidence that VA will
attempt to obtain and which evidence he or she is responsible
for providing. See, e.g., Quartuccio v. Principi, 16 Vet.
App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in
Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a
substantially complete application for benefits is received,
proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim, in accordance with 38
C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. §
3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.
VA's notice requirements apply to all five elements of a
service connection claim: Veteran status, existence of a
disability, a connection between the Veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the RO,
to include the AMC). Id; Pelegrini, 18 Vet. App. at 112.
See also Disabled American Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA
notice requirements may, nonetheless, be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. Id.
In this appeal, an April and a June 2006 pre-rating letter
provided notice to the Veteran of the evidence and
information needed to substantiate his claims for service
connection. These letters informed the Veteran of what
information and evidence must be submitted by the Veteran,
and what information and evidence would be obtained by VA.
The letter further requested that the Veteran submit any
additional information or evidence in his possession that
pertained to his claims. In addition, these letters provided
the Veteran with notice regarding disability ratings and
effective dates consistent with Dingess/Hartman. Following
these notice letters, the RO granted service connection for
each disability on appeal, except for bilateral hearing loss.
The July 2007 RO rating decision reflects the initial
adjudication of each of the claims on appeal. Hence, the
April and June 2006 letters-which meets all four of
Pelegrini's content of notice requirement- also meets the
VCAA's timing of notice requirement.
Additionally, the record also reflects that VA has made
reasonable efforts to obtain or to assist in obtaining all
relevant records pertinent to the matter on appeal. Pertinent
medical evidence of record includes the Veteran's service
treatment records, VA medical records, private medical
records and the reports of VA examinations. Also of record
and considered in connection with the appeal are various
written statements provided by the Veteran as well as by his
attorney, on his behalf.
In summary, the duties imposed by the VCAA have been
considered and satisfied. Through various notices of the RO,
the appellant has been notified and made aware of the
evidence needed to substantiate the claims herein decided,
the avenues through which he might obtain such evidence, and
the allocation of responsibilities between himself and VA in
obtaining such evidence. There is no additional notice that
should be provided, nor is there any indication that there is
additional existing evidence to obtain or development
required to create any additional evidence to be considered
in connection with any claim(s). Consequently, any error in
the sequence of events or content of the notice is not shown
to prejudice the appellant or to have any effect on the
appeal. Any such error is deemed harmless and does not
preclude appellate consideration of the matters herein
decided, at this juncture. See Mayfield, 20 Vet. App. at 543
(rejecting the argument that the Board lacks authority to
consider harmless error). See also ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Service connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated during
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a
determination requires a finding of current disability that
is related to an injury or disease in service. Watson v.
Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992). Service connection may be granted for
a disability diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disability is due to disease or injury that was
incurred or aggravated in service. 38 C.F.R. § 3.303(d).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies at 500,
1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385. Even though disabling hearing loss is not demonstrated
at separation, a Veteran may, nevertheless, establish service
connection for a current hearing disability by submitting
evidence that a current disability is related to service.
Hensley v. Brown, 5 Vet. App. 155 (1993).
Initially, the Board notes that on separation examination in
November 2005, the Veteran was diagnosed with mild hearing
loss. Audiometric testing performed at that time revealed
that pure tone decibel thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-5
0
15
25
20
LEFT
5
-5
15
30
25
During a May 2006 VA audiology examination, the Veteran
reported that he served in Iraq and was an artillery canon
crew member. He had exposure to 155 and 105 howitzers,
roadside bombs, RPGs, and mortar attacks. Tinnitus was not
present.
Audiometric testing performed revealed that pure tone decibel
thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
5
20
25
20
LEFT
0
5
20
35
25
The Veteran's speech discrimination score on the Maryland CNC
word list was 96 percent in the right ear and 96 percent in
the left ear. The diagnosis was bilateral hearing loss not
disabling pursuant to 38 C.F.R. § 3.385.
In the Veteran's August 2007 notice of disagreement, he
stated that he service as a field artilleryman for his entire
military career and therefore, undoubtedly his hearing
condition will only worsen in the upcoming years due to the
extremely loud noises he was exposed to throughout his 25
plus years as a field artilleryman.
In this case, while the Veteran was diagnosed with bilateral
hearing loss on separation examination and during the May
2006 VA examination, none of the objective evidence of record
shows that the Veteran has a hearing loss disability that
meets the criteria set forth in 38 C.F.R. § 3.385. See
Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of
disability ratings for hearing impairment are derived by a
mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered).
Thus, the Veteran does not have a current bilateral hearing
loss disability for VA purposes. Service connection requires
evidence that establishes that the Veteran currently has the
claimed disability. See Degmetich v. Brown, 104 F. 3d. 1328,
1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Without a current disability, the Veteran's claim
for service connection for bilateral hearing loss cannot be
granted.
Therefore, the Board finds that a preponderance of the
evidence is against the Veteran's claim for service
connection for bilateral hearing loss. Because the
preponderance of the evidence is against the Veteran's claim,
the benefit of the doubt provision does not apply. 38
U.S.C.A. § 5107(b). As such, service connection for
bilateral hearing loss must be denied.
III. Increased ratings
Disability ratings are determined by application of the
criteria set forth in VA's Schedule for Rating Disabilities,
which is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as
to which of two ratings applies under a particular Diagnostic
Code (DC), the higher rating is assigned if the disability
more closely approximates the criteria for the higher rating;
otherwise, the lower rating applies. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the Veteran. 38 C.F.R. §
4.3 (2009).
The Veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as
here, the question for consideration is the propriety of the
initial rating assigned, evaluation of the medical evidence
since the effective date of the grant of service connection
and consideration of the appropriateness of "staged rating"
(assignment of different ratings for distinct periods of
time, based on the facts found) is required. See Fenderson,
12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App.
505 (2007).
A. PTSD
The Veteran's PTSD has been assigned an initial 10 percent
rating from the March 1, 2006 effective date of service
connection to October 13, 2008, and a 30 percent rating for
the period from October 14, 2008, pursuant to 38 C.F.R. §
4.130, Diagnostic Code 9411. A General Rating formula for
evaluating psychiatric impairment other than eating disorders
contains the actual rating criteria for evaluating the
Veteran's PTSD disability.
Pursuant to the General Rating formula, a 10 percent rating
is warranted for occupational and social impairment due to
mild or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or the symptoms controlled by continuous
medication.
A 30 percent rating is warranted when there is occupation and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactory, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent rating requires occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once per week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent rating is warranted for occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or work like
setting); inability to establish and maintain effective
relationships.
A rating of 100 percent is warranted for total occupational
and social impairment due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation, or own name.
In a May 2006 letter, the Veteran stated that he has dreams
at least twice a week with night sweats.
A July 2007 VA PTSD examination report reflects that the
Veteran complained of nightmares, some flashbacks, and that
he is easily startled. He stated that he has a sleep
disturbance with both difficulty falling asleep and
interrupted sleep. He has nightmares two to three times a
week along with occasional flashbacks. He has intrusive
thoughts. He is not anxious, but he states he is easily
startled. He doesn't talk about his experiences. He is
hypervigilant and is uncomfortable in crowds. He does not
receive psychiatric treatment. The Veteran currently works
part-time at an ABC store. He has not missed any work
because of psychiatric symptoms. He lives with his wife,
does chores around the house. He does not have any close
friends. He goes to the gym and watches some television. He
does go to church. He is married three times and has two
children with whom he is not close.
On mental status evaluation, the Veteran was casually, but
appropriate dressed. He was calm and did not exhibit bizarre
motor movements or tics. His affect was appropriate. There
are no loosened associations or flight of ideas. He has
nightmares and intrusive thoughts. There is no homicidal or
suicidal ideation or intent. There is no impairment of
thought processes of communications. There are no delusions,
hallucinations, ideas of reference, or suspiciousness. He is
oriented times three. His memory, both remote and recent
appears to be adequate. Insight and judgment appear to be
adequate. The Veteran re-experiences traumatic events
through nightmares, intrusive thoughts, and flashbacks. He
avoids talking about his experiences. He has sleep
disturbance. He is hypervigilant and easily startles. These
problems have interfered with social activities and cause
distress. The Veteran contends that as a result of his
experiences, he is more withdrawn. The diagnosis was PTSD,
some impairment of interpersonal interactions and a GAF score
of 56 was assigned.
In a July 2007 rating decision, the RO granted service
connection an assigned an initial 10 percent disability
rating for PTSD.
In the Veteran's August 2007 notice of disagreement, he
stated that his PTSD has significantly impaired his personal
daily life and resulted in an inability to sleep well, have
nightmares and night sweats, feeling detached or estranged,
marital and family problems, and the inability to function in
his social life.
In an October 2008 VA PTSD examination report the Veteran
stated that he has more bad dreams and is more anxious than
he used to be. He has a sleep disturbance with interrupted
sleep. He has nightmares two or three times a week. He has
intrusive thoughts. He does not watch the news. He is
easily startled, anxious, and hypervigilant. He avoids large
crowds. He does not receive current psychiatric treatment.
He does chores around the house, lives with his wife, has
diminished interests, watches some television, and does not
go to church. He has limited recreational and leisure
pursuits.
Mental status evaluation reflects that the Veteran was
appropriately dressed. He did not exhibit bizarre motor
movements or tics. His affect was appropriate. His mood was
calm. There are no loosened associations or flight of ideas.
He has nightmares and intrusive thoughts. There is no
homicidal or suicidal ideation or intent. There is no
impairment of thought processes of communications. There are
no delusions, hallucinations, ideas of reference, or
suspiciousness. He is oriented times three. His memory,
both remote and recent appears to be adequate. Insight and
judgment appear to be adequate.
The diagnosis was PTSD with some impairment of interpersonal
interactions and a GAF score of 54 was assigned. The Veteran
degree of social and occupational impairment, secondary to
his psychiatric symptoms are mild to moderate.
In a December 2008 rating decision, the RO granted a higher
30 percent rating for PTSD, effective October 14, 2008.
Given the above, and affording the Veteran the benefit of the
doubt, the Board finds that his PTSD symptoms more nearly
approximate a 30 percent rating, but no more, since the March
1, 2006 effective date of the grant service connection
through the appeal period. In this regard, the Veteran's
psychiatric symptomatology has included chronic sleep
impairment, nightmares, night sweats, flashbacks,
hypervigilance, avoidance behavior, easily startled, feeling
detached or estranged from friends and family, and anxiety.
The Board finds that this symptomatology more nearly reflects
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactory, with routine behavior, self-care, and
conversation normal).
The Board also notes that the GAF scores assigned are
consistent with an initial 30 percent rating. According to
the Fourth Edition of the American Psychiatric Association's
(Diagnostic and Statistical Manual of Mental Disorders) (DSM-
IV), a GAF is a scale reflecting the "psychological, social,
and occupational functioning on a hypothetical continuum of
mental health-illness. The Board notes that during a July
2007 VA PTSD examination, the examiner assigned a GAF score
of 56 and during an October 2008 VA PTSD examination, the
examiner assigned a GAF score of 54. According to DSM-IV,
GAF scores between 51 and 60 denote moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or
school functioning (e. g., few friends, conflicts with peers
or co-workers). In this case, the reported symptomatology is
consistent with moderate symptoms or moderate difficulty in
social, occupational, or school functioning, and some
disturbances of motivation and mood, as well as difficulty in
establishing and maintaining effective work and social
relationships, which is also consistent with the impairment
contemplated by a 30 percent disability rating.
In granting an initial 30 percent rating for the Veteran's
PTSD from the March 1, 2006 effective date of the grant of
service connection, the Board has considered the rating
criteria in the General Rating Formula for Mental Disorders
not as an exhaustive list of symptoms, but as examples of the
type and degree of the symptoms, or effects, that would
justify a particular rating. The Board has not required the
presence of a specified quantity of symptoms in the rating
schedule to warrant the assigned rating for PTSD. See
Mauerhan v. Principi, 16 Vet. App. 436 (2002).
The Board emphasizes, however, that the symptoms associated
with the Veteran's PTSD do not meet the criteria for the next
higher, 50 percent rating. As noted above, a 50 percent
rating requires occupational and social impairment with
reduced reliability and productivity; however, the Board
finds that neither the delineated symptoms nor comparable
symptoms are shown to be characteristic of the Veteran's
PTSD. Evidence of record does not indicate that the Veteran
has exhibited flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once per week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. In sum, the psychiatric symptoms shown do not
support the assignment of the next higher 50 percent
disability rating at any time during the appeal period.
In light of all the foregoing, and resolving all reasonable
doubt in the Veteran's favor, the Board finds that the
Veteran's PTSD symptoms more nearly approximate an initial 30
percent disability rating since the March 1, 2006 effective
date for the grant of service connection through the appeal
period.
B. Urticaria
The Veteran's urticaria has been assigned an initial 10
percent rating from the March 1, 2006 effective date of
service connection, pursuant to 38 C.F.R. § 4.118, Diagnostic
Code 7825.
Under Diagnostic Code 7825, a 10 percent rating is warranted
where there are recurrent episodes of urticaria occurring at
least four times during the past 12-month period, and;
responding to treatment with antihistamines or
sympathomimetics. A 30 percent rating is warranted where
there are recurrent debilitating episodes occurring at least
four times during the past 12-month period, requiring
intermittent systemic immunosuppressive therapy for control.
A maximum 60 percent evaluation is warranted where there are
recurrent debilitating episodes occurring at least four times
during the past 12-month period despite continuous
immunosuppressive therapy.
In a May 2006 private laboratory report, the doctor commented
that the Veteran was allergic to everything and she wanted
him to see an allergist to undergo desensitization.
A May 2006 VA general medical examination report reflects
that the Veteran stated he has chronic hives that is
recurring; episodes generally last 24 hours. His hives come
on abruptly, usually involving the chest, back, and abdomen.
He has now found that he is allergic to a number of food
substances and is going to undergo desensitizing program. He
does not use antihistamines for the hives. No malignant or
benign neoplasm. The extent of the hives is about 26 percent
of the body. It does not occur on any exposed areas, 0
percent on the exposed areas. There is no acne, no scarring
alopecia, no alopecia areata, and no hyperhydrosis. He did
not have any evidence of hives at this time. The diagnosis
was chronic urticaria allergic in type.
In a July 2007 rating decision, the RO granted service
connection and assigned an initial 10 percent disability
rating for urticaria.
A November 2007 Carolina Asthma and allergy center record
reflects that the Veteran was not to have peanuts, tree nuts,
and seafood. Environmental controls noted were dust mite,
dog, and mold. The Veteran was to carry "twinject" and
Benadryl in case of some life threatening allergy. The
Veteran was to take Xyzal and Zantac daily.
An October 2008 VA medical record reflects that the Veteran
was assessed with peanut and multiple food allergies,
precautions, 911 instructions reviewed and EPI pen refilled.
An October 2008 VA skin disease examination report reflects
that the Veteran stated he developed urticaria in service and
was found to have food allergies. He has multiple foods that
he can not eat. He has learned to control this by controlled
his diet. He carries epinephrine with him in cases he gets
urticaria. The Veteran stated that when he has urticaria it
causes itching. On examination, hives were not seen. The
diagnosis was that urticaria was not found on this
examination.
In a January 2009 letter, the Veteran states that even with
taking precautions, he has hives on his body averaging twice
monthly.
Given the evidence of record, the Board finds that an initial
rating in excess of 10 percent is not warranted for the
Veteran's urticaria strain. The examination reports and
treatment notes of record indicate that his urticaria is
stable. The May 2006 found no evidence of hives, no acne, no
scarring alopecia, and no alopecia areata at the time of the
examination. The October 2008 VA examination also found no
evidence of hives and specifically determined that urticaria
was not found on examination. The Veteran reports that he
has recurrent hives, on average, two times a month. In sum,
the Board finds that the Veteran's service-connected
urticaria is manifested, at most, by symptomatology that
warrants the currently assigned initial 10 percent disability
rating pursuant to Diagnostic Code 7825.
The Board has also considered the applicability of other
diagnostic codes for rating this disability, but finds that
no other diagnostic code provides a basis for higher rating.
This disability also has not been shown to involve any
factors that warrant evaluation under any other provision of
VA's rating schedule.
C. Residual scars
Initially the Board notes that the criteria for evaluating
the Veteran's service-connected residual scars under 38
C.F.R. § 4.118, Diagnostic Codes 7800 through Diagnostic Code
7805, were revised effective October 23, 2008. They were
specifically limited to claims filed on or after October 23,
2008. Here, the Veteran's initial claim (from which the
initial rating action stems) for service connection was
received in 2006. Accordingly, the revised schedular rating
criteria are not applicable in this case and those in effect
prior to October 23, 2008, must be applied.
The Veteran's service-connected residual scar disabilities
are each rated as noncompensable pursuant to 38 C.F.R.
§ 4.118, Diagnostic Code 7805. Diagnostic Code 7805
indicates that scars, other (including linear scars) and
other effects of scars are to be evaluated under diagnostic
codes 7800-7804.
To warrant an initial compensable rating for the Veteran's
residual scar, shrapnel wound to the right shoulder and
residual scar, status post hernia repair, the evidence would
have to show that these scars are deep and nonlinear and
affect an area of at least 6 square inches (39 sq. cm.), but
less than 12 square inches (77 sq. cm.); are superficial and
nonlinear and affect an area of 144 square inches (929 sq.
cm.); or was unstable; or was painful on examination. 38
C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804.
Scars may also be rated based on limitation of function of
affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805.
Considering the pertinent evidence in light of the above, the
Board finds that an initial compensable rating for the
Veteran's residual scar, shrapnel wound to the right shoulder
and for the residual scar, status post hernia repair is not
warranted at any time since the March 1, 2006 effective date
of the grant of service connection.
With regard to the service-connected residual scar, shrapnel
wound to the right shoulder, the evidence includes a May 2006
VA general examination report that reflects that the Veteran
has a shrapnel wound that is a punctuate wound on the right
shoulder occupying less than 1 percent of the body, no
exposed area. There is no scarring or disfigurement other
than the small punctuate scar which is discolored, blackish,
on the right shoulder measuring 3/4 centimeter in diameter.
There is no acne, no scarring alopecia, no alopecia areata,
and no hyperhydrosis. The diagnosis was shrapnel wound to
the right shoulder with residual fragment.
An October 2008 VA scars examination report reflects that the
Veteran has a scar, superior aspect of the right shoulder, 2
millimeters. The scar was subjectively tender to palpation,
no adherence to the underlying tissues, skin texture was the
same as surrounding skin. It was not unstable, no elevation
or depression, superficial, not deep, no inflammation, edema,
or keloid, color is same as surrounding skin, no induration
or inflexibility, no limitation of function and no
disfigurement. The diagnosis was shrapnel fragment wound
scar, right shoulder.
With regard to the residual scar, status post hernia repair,
the evidence of record include a May 2006 VA general medical
examination report in which it was noted that the Veteran had
an umbilical hernia repaired in 1992. He has no residual
pain or discomfort from this area. There is an umbilical
hernia surgical scar on the inferior aspect of the umbilicus
which measures about 1 inch circumferentially on the lower
part of the umbilicus, no hernia felt. No tenderness in the
area. The diagnosis was umbilical hernia, status post
repair.
An October 2008 VA scars examination report reflects that the
Veteran has a scar, umbilical area, three fourths inch. The
scar was subjectively tender to palpation, no adherence to
the underlying tissues, skin texture was the same as
surrounding skin. It was not unstable, no elevation or
depression, superficial, not deep, no inflammation, edema, or
keloid, color is same as surrounding skin, no induration or
inflexibility, no limitation of function and no
disfigurement. The diagnosis was surgical scar, umbilical
area.
In this case, the evidence of record does not show that the
Veteran's residual scar, shrapnel wound to the right shoulder
and the residual scar, status post hernia repair are deep
and nonlinear and affect an area of at least 6 square inches
(39 sq. cm.), but less than 12 square inches (77 sq. cm.);
are superficial and nonlinear and affect an area of 144
square inches (929 sq. cm.); are unstable; or are painful on
examination. In addition, these scars are not associated
with limitation of function. While there is some tenderness
of the scars, objective evidence of painful scars has not
been shown. No functional limitation has been shown.
The Board has also considered the applicability of other
diagnostic codes for rating these disabilities, but finds
that no other diagnostic code provides a basis for higher
rating. These disabilities also have not been shown to
involve any factors that warrant evaluation under any other
provision of VA's rating schedule.
D. Plantar wart of the right foot
The Veteran's plantar wart of the right foot is assigned a
noncompensable rating under 38 C.F.R. § 4.118, Diagnostic
Code 7819, which directs to rate by analogy to the Diagnostic
Codes for scars. Diagnostic Codes 7800-7805 (noted above).
A May 2006 VA general medical examination report reflects
that the Veteran has a small planter's war on the plantar
surface of the right foot between the first and second
metatarsal bone. It was non-tender at that time and flat.
It measures 1 centimeter across. The diagnosis was planter
wart right foot.
Private medical records from Carmel Foot Specialists, dated
from January 2007 to June 2007 reflects that the Veteran
complained of a "wart" on the bottom of his foot. He
stated it hurts occasionally when he runs. Physical
examination revealed mild tenderness on this hyperkeratotic
lesion, which is submetatarsal 3 area, directly, right foot.
After treatment, the Veteran reported that he was no longer
feeling pain in this area; however, in June 2007, the Veteran
was again seen for recurrence of painful lesion, right foot.
An October 2008 VA skin disease examination report reflects
that the Veteran complained that his plantar wart caused
pain. Physical examination revealed that the Veteran had a
small plantar wart on the sole of his foot. It involved 0
percent exposed surface and less than 1 percent of the total
body surface. The diagnosis was plantar wart, right foot.
By resolving all reasonable doubt in favor of the Veteran,
based on the Veteran's complaints of pain, the Board finds
that an initial 10 percent disability rating under Diagnostic
Code 7804 is warranted. In this regard, the record reflects
that the Veteran has consistently complained of pain from his
plantar wart and sought treatment from his private
physicians. However, the Veteran's plantar wart was never
objectively found to be unstable, or to affect right foot
function. Further at no time since the March 1, 2006
effective date of the grant of service connection has the
Veteran's service-connected right foot plantar wart been
found to cover an area exceeding six square inches. Thus, an
initial 10 percent, but no higher rating, is warranted for
the Veteran's service-connected plantar wart of the right
foot.
E. Each disability being rated
The Board finds that the Veteran's symptoms do not present
such an exceptional disability picture as to render the
schedular rating inadequate. 38 C.F.R. § 3.321(b). See also
Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold
factor for extraschedular consideration is a finding that the
evidence before VA presents such an exceptional disability
picture that the schedular evaluation is inadequate). There
is no objective evidence that the Veteran's service connected
disabilities present such an exceptional or unusual
disability picture, with such factors as marked interference
with employment or frequent periods of hospitalization, as to
render impractical the application of the regular schedular
standards.
The Board finds that there is no basis for staged ratings,
pursuant to Fenderson, and that the claims for initial higher
ratings for urticaria, residual scar, shrapnel wound to the
right shoulder, and for residual scar, status post hernia
repair must be denied. In reaching this conclusion, the
Board has considered the applicability of the benefit-of-
the-doubt doctrine; however, as the preponderance of the
evidence is against each of these claims that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert
v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
An initial 30 percent rating, but no higher, for PTSD, from
the March 1, 2006 effective date of the grant of service
connection is granted throughout the appeal period, subject
to the law and regulations governing the payment of monetary
benefits.
An initial rating in excess of 10 percent for urticaria is
denied.
An initial compensable rating for residual scar, shrapnel
wound to the right shoulder is denied.
An initial compensable rating for residual scar, status post
hernia repair is denied.
An initial 10 percent rating, but no higher, for plantar wart
of the right foot, is granted, subject to the law and
regulations governing the payment of monetary benefits.
REMAND
In a July 2006 letter, the Veteran stated that he had x-rays
of his right hip, left foot, and both knees at the VA clinic
in Winston-Salem, North Carolina in June 2006. The Board
notes that only VA medical records from the Salisbury, North
Carolina VA medical center (VAMC) are associated with the
claims file. Therefore, it appears that additional records
pertaining to the Veteran's diagnosis and treatment for his
service-connected right hip, left foot, and bilateral knee
disabilities may exist. There is no documentation in the
claims file indicating that any attempt was made to obtain
these records from the Winston-Salem VAMC, and therefore, a
remand is warranted. See Dunn v. West, 11 Vet. App. 462
(1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA
treatment records are in constructive possession of the
Secretary, and must be considered if the material could be
determinative of the claim).
Accordingly, these matters are REMANDED for the following
action:
1. The RO should obtain from the Winston-
Salem all outstanding medical records from
March 2006 to the present, to specifically
include all x-ray reports. The RO must
follow the procedures set forth in
38 C.F.R. § 3.159(c) as regards requesting
records from Federal facilities. All
records and/or responses received should
be associated with the claims file.
2. Thereafter, the RO should
readjudicate the Veteran's claims for
higher initial ratings for right hip
strain, chondromalacia of the left and
the right knees, and residual scar,
status post fracture of the left
metatarsal bone. If any benefit sought
on appeal remains denied, the Veteran and
his attorney should be provided with a
SSOC that contains notice of all relevant
actions taken on the claim. An
appropriate period of time should be
allowed for response before the claims
file is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
___________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs